Austin PD made bodycam policy worse, and no one in the Austin press reported it. Shocking.

Grits is still catching up on all that went on while I was under the weather these last few months, and wanted to visit the new, much-worse bodycam policy enacted by Austin PD on March 16. Farah Muscadin at the city's Office of Police Oversight put out a formal objection to the new policy two weeks ago that deserves readers' attention.

Basically, APD downgraded violations of the bodycam policy and made those violations much less transparent. Wrote Muscadin, "These changes delegitimize the discipline process by trivializing conduct that has historically been treated as a significant policy violation."

In essence, this is a reaction to the (relatively) new police contract enacted in 2018. Under the revised contract, written reprimands of officers became public records for the first time. Previously, the public couldn't know about disciplined officers unless they were suspended from duty as a punishment.

Under the old policy, on the first offense bodycam violations received punishments ranging from a written reprimand to a one to three day suspension, with penalties increasing by one level on the second  and third offenses.

Now, officers receive "oral counseling" on the first offense, get a "counseling memorandum" on the second offense, and on the third offense punishments range from an "oral reprimand" to a one-to-three day suspension.

So, as Muscadin notes, "Due to the March 16th changes, an officers third sustained violation of the [bodycam policy] now results in lighter discipline than an officer used to receive upon their first violation of those policies." And since they'll no longer receive written reprimands, the public can no longer discover these violations under the Public Information Act.

APD notified the Office of Police Oversight on the same day it took effect. Noted Muscadin, "APD's practice of soliciting feedback on proposed policy changes without providing adequate notice or opportunity to respond is unacceptable and contradictory to APD's support of civilian oversight."

Muscadin recommended the department reverse this policy and go back to the old one and Grits couldn't agree more. Enacting the policy without giving anyone - even the OPO - a realistic chance to respond reeks of bad faith, and mirrors their behavior gutting the police complaint process, which Grits discussed previously, to make that process more opaque.

Finally, this is another big story at Austin PD which has been utterly, 100% ignored by the local media. Apparently, if the APD Public Information Office doesn't spoon feed reporters a story, they just don't cover it. And when APD does spoon fed them something, they spin it to avoid saying anything critical.

Grits hopes the Austin City Council intervenes to reverse both the bodycam policy and the new policy on the complaint process. These changes appear intentionally designed to undermine police oversight and hard-won gains in the police contract process. They must not stand.

Defense pushback against Kim Ogg's contention that judges can't consider COVID

Last week, Grits wrote about a unusual motion to the Texas Court of Criminal Appeals from Harris County District Attorney Kim Ogg arguing for higher bail in the case of Timothy Singleton, in which the DA asked the court to rule that judges could not consider issues related to the coronavirus when setting bail. After initially turning her down, Singleton allegedly committed another offense, this time, domestic violence against his girlfriend and her grandmother, and fled. The DA again asked the CCA to intervene, and this time the court required the bond be set at $100,000, although they did not mention nor affirm the DA's contention the judges couldn't consider public health issues during bail decisions.

Now, though, Mr. Singleton has hired counsel, Brent Mayr and Stanley Schneider, who on 4/20 issued a motion for reconsideration to the CCA. The Houston Chronicle's St. John Barned-Smith provided coverage here. Their brief provides a great example why one doesn't get a full story in the courtroom unless both sides get to make arguments.

For example, the DA's brief had not informed the CCA that the pretrial risk assessment instrument magistrates use to guide release decisions scored Singleton at a level suggesting a "Personal Bond Recommendation referred to Magistrate." That would have been useful information to give them, don't you think? The DA recommended no bail, and the magistrate set bail at $500.

The Chronicle story mentioned a few other items from the defense brief that the DA had omitted, including the magistrate's specific reason for her decision:

Court records show the magistrate noted that police did not find any gun when they investigated the allegation against Singleton. His bond paperwork also shows police did not appear to have spoken to any other witnesses, and that Singleton had not missed any court appearances in the two years prior to the incident. 

Magistrate Jennifer Gaut also ordered him not to have contact with the man he was accused of threatening.

Gaut also conditioned his release on complying with curfew restrictions. So, while the DA's brief accused the magistrate of ignoring the state's recitation of Singleton's criminal history, and pretended her sole concern was a desire not to "fill up the jail," clearly she was looking more closely than they gave her credit for at the evidence being presented in the current case, and was following the recommendation of the pretrial risk assessment, which was never mentioned in the state's brief to the CCA.

Attorneys and others closely following bail debates will want to read and digest the analysis in the defense brief, which goes through the relevant statutes governing increasing bail much more thoroughly than did the state's. They claim "The state plays fast and loose with its citations to authority in its motion."

The alleged authority to have the CCA raise the bail amount relied on a statute that only applies to examining trials, argued the defense, while ignoring a more-on-point statute which declares that, once a defendant "has given bail for his appearance in answer to criminal charges, he shall not be required to give another bond in the course of the same criminal action" unless the judge or magistrate "in whose court such action is pending" finds the bond is defective, excessive, or insufficient, or the sureties provided are "not acceptable." Under that statute, the CCA plays no role.

They quoted back to the CCA its own holdings on statutory construction that when "a general statute and a more detailed enactment are in conflict, the latter will prevail." They contend that the statute the DA relied upon, Article 16.16 of the Code of Criminal Procedure, "is a general statute that applies when there is an examining trial and bail in that limited context is found to be insufficient. Article 17.09, however, is much more detailed and provides an explicit prohibition on a defendant having to give another bond. And it limits the authority to require a defendant to be rearrested and give another bond to the judge or magistrate who the matter is pending before."

The defense cited precedent in which Judge Michael Keasler, who is still on the CCA, disallowed judges besides those authorized in Article 17 from changing bail amounts, lamenting this would lead to a system where "all judges have jurisdiction over all things at all times. and where forum shopping to reduce or increase bail amounts flourishes." According to the defense brief, "The action taken by the state here is absolutely no different and for this Court to entertain such action would put it squarely in conflict with this precedent." If the CCA ignores this longstanding precedent, they warn, "the floodgates will open" and appellate courts will be inundated with back-and-forth motions on bail that would "create an endless cycle."

The defense brief iterates that a court's bail decisions may only be reviewed on appeal for "abuse of discretion," and cites precedent that "an appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement." Given that the pretrial risk assessment relied upon by magistrates recommended Mr. Singleton receive a personal bond, granting low bail appears to this non-attorney observer as per se within this "zone of reasonable disagreement."

The defense concluded,

Let there be no mistake about what the State is doing here: they are complaining about the decision of the magistrate and the trial court setting bail in this case. The State has no right to appeal a trial court’s decision to set bond. Nor could they seek a writ of mandamus or prohibition. And, yet they are asking this Court to review the trial court’s decision with no record, no findings of fact, nothing more than conclusory affidavits.

Finally, the defense brief addressed the DA's novel argument that courts are disallowed from considering health concerns when setting bail. They argued that concerns about limiting incarceration due to the coronavirus falls directly under the court's authority to consider the "future safety of ... the community," which is explicitly a factor statutes contemplate when judges set bail.

As Grits mentioned the other day, the Harris County jail is struggling more than any other lockup in the state with the coronavirus outbreak, which places not only inmates but jailers and the community at large at risk. Future safety of the community is a broad concept, and nothing in the statute limits how judges should define it. Seems like a pretty strong argument to me.

The Houston Chronicle coverage pointed out how unusual was both the state's motion and the CCA's rapid response to it:

Courthouse veterans said the move was surprising for both the speed with which the CCA ruled on the case, and the judges' decision to set Singleton’s bail above what prosecutors had initially asked for. 

[Harris County Public Defender Alex] Bunin said that when defendants ask the CCA to reduce their bond, the court can take months — or longer — to act. 

“It seems more like they are trying to send a message than create law,” Bunin said, of the appellate judges. “But it’s an unclear message other than ‘don’t set low bonds unless you have somebody with no criminal history and a history of appearing in court when asked.’”

There's no telling how the CCA will react to this new motion, or how quickly. With the Government-Always-Wins faction currently in firm control of the court, one wouldn't be surprised if they side with the District Attorney no matter what. The GAW majority on the court tends to be outcome oriented, first deciding what they want the result to be and then searching out legal arguments to support it instead of interpreting the law and having that decide the outcome. But because that approach would fly in the face of past CCA precedents that benefited the state, in particular a key precedent authored by a GAW judge who's still on the court, it could become a much closer call.

Regardless, Grits finds this debate fascinating. I'm learning a lot from it.

More on union chief thwarting investigation into Austin PD racism complaints

Grits' post on the recently released report analyzing racism allegations at Austin PD deserves a followup. I won't restate all that was written there, but go read it if you haven't.

The Austin Police Association issued a press release yesterday deflecting blame from their president, Ken Casaday, whom the report revealed had informed Assistant Chief Justin Newsom of a confidential complaint against him, allowing him to retire before an investigation could be launched. According to the release, "The conversation regarding whether or not APA President Casaday can or should be punished for having a conversation with a dues paying member is laughable," and they "struggle to find a relevant general order that prohibits conversations between an association member and the association president."

Since they're struggling, let's help them out.

First, to review the issue, here's how Casaday's actions were described in the Tatum report:

In discussions with Detective Casaday, he commented on the fact that everyone in the Department keeps talking about “who snitched” and told AC Newsom about the complaint against him (Complaint 1), alleging racist behavior using text messages, enabling him to retire with a significant amount of accumulated leave pay. Detective Casaday acknowledged he became aware of Complaint 1 against AC Newsom and admitted he told AC Newsom about the anonymous complaint. Detective Casaday did not state how or when he became aware of Complaint 1 or exactly when he discussed Complaint 1 with AC Newsom. However, the consequence of the notification allowed AC Newsom to make the decision to leave the Department before an investigation could be initiated, making AC Newsom eligible to receive his full leave pay upon retirement.

According to the Tatum report, many current and former officers viewed this as improper:

Interviews with other witnesses, particularly other active and separated sworn employees, consistently shared their concern over AC Newsom’s departure with full benefits and no review of the allegations raised against him. There seemed to be an understanding of policy; however, the feeling of betrayal and an abuse of the system were quite prevalent.

Grits suggested that Casaday violated departmental rules because of Art. 16, Sec. 8 of the police contract, which says "Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the department's use pursuant to Sec. 143.089(g) of the Texas Local Government Code." I interpret that to include information about complaints, not just investigations.

As for the general orders, Sec. 900.3.1c may be the most on point: "Employees will not attempt to conceal, divert, or mitigate their true culpability in a situation, nor will they engage in efforts to thwart, influence, or interfere with an internal or criminal investigation." IMO, Casaday definitely thwarted and interfered with an internal investigation. By informing Newsom about the confidential complaint before the department could act, Casaday directly prevented an investigation from occurring.

To be clear, if Newsom had already been told about the complaint, he was allowed to consult with the union under Art. 17, Sec. 6 of the contract. But Casaday finding out through gossip channels and sharing information about a complaint with its target, by my reading, violates Art. 16, Sec. 8 of the contract and Sec. 900.3.1c of the general orders. I'm not an attorney (and neither is Casaday), but the plain language of those provisions seems clear.

More generally, Casaday had a duty not to tell Newsom under the Law Enforcement Code of Ethics, General Orders, p. 2, in which officers must swear "Whatever I see or hear of a confidential nature or that is confided to me in my official capacity, will be kept ever secret unless revelation is necessary in the performance of my duty." The code also states that an officer "shall guard against the use of his office or person, whether knowingly or unknowingly, in any improper or illegal action."

To the extent Casaday's actions were "a betrayal and an abuse of the system," as it was characterized by officers per the Tatum report, arguably both those provisions apply. With hindsight, it's hard not to describe what happened as "improper," since it thwarted the formal departmental investigation process.

Then, under Sec. 900.3.2a of the general orders (Acts bringing discredit on the department), we find a rule stating, "Employees will not commit any act which tends to destroy public confidence in, and respect for, the department or which is prejudicial to the good order, efficiency, or discipline of the department." Helping Newsom avoid a formal investigation by revealing confidential complaint information surely falls into that category.

Finally, the press release insisted, "if the department wished to investigate APA President Casaday, we are still within the 180-day period to suspend him for his conversation with then Asst Chief Newsom." Grits had written that we were past the 180-day point, but if not, perhaps this should be (quickly) considered?

APA is right that Chief Brian Manley is uniquely culpable for Newsom not being investigated and punished. Honestly, I wouldn't be surprised or disappointed if Manley lost his job over it. But that doesn't change the fact that it was improper for Casaday to do what he did and his actions made the situation worse.

Snapshot of coronavirus in Texas county jails

Today, as Grits catches up on all that's happened while I've been under the weather, I decided to check in on the extent of coronavirus contagion reported so far in Texas county jails. Here's an update.

Statewide, according to data from the Texas Commission on Jail Standards, as of April 19, 180 Texas county jail inmates have tested positive for the coronavirus, as well as 153 jailers. Another 3,668 inmates were in isolation/quarantine, 160 inmates were awaiting test results, and 3 inmates with active COVID cases were being treated offsite. By contrast, test results were pending for all 144 jailers who were quarantined or isolated because of the virus, so testing clearly has been concentrated among staff, not inmates.

The most troubling situation arises in Harris County. In Houston, reported KTRH radio on April 20:

The number of Harris County Sheriff’s Office employees diagnosed with coronavirus has reached 126, with 108 of the positive test results being among those who work in the jail. 

There are currently 327 Harris County Sheriff’s Office deputies, detention officers and support staff on quarantine for possible COVID-19 exposure. Six of these employees are currently in the hospital. As of Monday, 153 previously quarantined employees – including 20 who previously tested positive for the virus -- have returned to duty. Seventy-nine Sheriff’s Office employees are still awaiting test results. Forty-three employees have received negative test results.

After Harris, Dallas County faces the biggest numbers. According to TCJS, 64 inmates have tested positive, along with 19 staff. An additional 39 inmates and 11 staff have been tested and are awaiting results, while 428 inmates were being kept in isolation but haven't been tested. A federal lawsuit filed in Dallas seeks to have medically vulnerable inmates released. The Sheriff says the county is already seeking to fast track release of medically vulnerable and has asked local law enforcement agencies to issue more citations instead of arresting people for low level offenses. But at some point, it's possible the federal courts could intervene.

In the San Antonio Express News we find a remarkable news story about COVID in the Bexar County Jail. There, "the number of inmates infected with the virus had grown to 20, including three being treated at a hospital. In addition, 21 deputies and five staffers who work at the jail have tested positive. Fourteen of the deputies were in the same cadet class, fresh from the training academy."

The Bexar Sheriff's Office announced new policies to address the virus:

In response to the outbreak, Sheriff Javier Salazar said he enacted a handful of changes at the jail, including the distribution of masks to all 3,000 inmates, twice-daily temperature checks and frequent cleanings of common areas, including the recreation room.

He said several units are locked down — confining nearly 1,000 inmates to their cells for 23 hours a day — and that the jail’s inmate worker program has been suspended after an inmate working in the kitchen was possibly exposed to the virus.

But reporter Emilie Eaton offered first-hand accounts painting a different picture:

In interviews with nearly a dozen inmates, their families and lawyers, they described a facility where 60 inmates are housed in a space with bunk beds barely 3 feet apart, not nearly the 6-foot separation needed for safe social distancing, cleanings are infrequent and not thorough, disinfectant is watered down, and temperature checks occur less than twice a day. 

The inmates said the staff provide minimal information about the outbreak in the jail, feeding false rumors about the virus. They talked about feeling scared and dealing with their fear by making morbid jokes about death. 

Lately, meals have been irregular and meager.

Cleaning in the Bexar Jail was also a fraught issue:

Five inmates said cleaning of the common areas was not happening twice daily, as the sheriff says. Inmates, who do the cleanings, said the yellow solution used could be described as “warm water” or “warm water with a tiny bit of disinfectant.” They said they’re not able to get more of it. 

Leilani Minjarez said her husband, who is in jail on a family violence charge, was tasked with cleaning the common areas a few weeks ago. 

“It’s not even a cleaning solution,” she said. “It’s 20 times diluted. He says he feels like he’s cleaning with dirty water.”

Further:

All the inmates said they weren’t given masks until a week ago — after the first inmate tested positive. By some estimates, it took even longer. They said the masks are flimsy and look like they’re meant to be disposed of daily. Some are falling apart. The guards have refused to give them new ones, they said. 

The inmates are each provided with one small, motel-size bar of soap a week, and when that is gone, they said, they either do without, find scraps that other inmates have left behind or have to buy more from the jail commissary. 

Inmates who don’t have money to spend on food in the commissary go hungry. One man told his lawyer that “everyone is starving.”

Sheriff Salazar disputed some of those contentions, saying cleaning is happening, masks are available, and they've asked their food vendor, Aramark, to begin preparing food offsite to avoid some of the problems described.

Otherwise, most counties have reported no confirmed COVID cases, but that may just be because the aren't testing. You can't report results you never receive, after all. Travis County has no inmates who've tested positive, but the press reported one jailer who did, though the case wasn't listed in the TCJS report.

Here are the other counties that have reported positive COVID cases to TCJS as of April 19:

Tarrant County has seen seven inmates and one jailer test positive, with one other inmate and 11 jailers awaiting test results.

Webb County has seen seven inmates and nine jailers test positive, with one inmate and one jailer awaiting test results. Another 111 untested inmates have been placed in isolation.

In Denton County, one inmate, three jailers tested positive, but testing for inmates appears very limited - none were awaiting results, as of 4/19, though three jailers have tested positive.

In Hidalgo County, one inmate and one jailer have tested positive, with no additional tests pending.

In Montgomery County, one inmate has tested positive and no others have been tested, although 8 jailers are currently in isolation awaiting test results.

In Gregg County, one inmate and three jailers have tested positive. Two jailers are in isolation awaiting test results, but no other inmates have been tested.

Historically, during contagions, jails have been incubators of disease. (See this excellent, extended Twitter thread documenting the problem dating to the 18th century.) In the largest Texas county jails, we're at risk of history repeating itself.

Once the virus is within the jail walls, there's really no way to prevent its spread. Even if inmates are kept in cells, most are double bunked and there's no way to avoid interaction with staff, who are just as vulnerable as are the inmates. In New York City, things got so bad that some 1,500 inmates were released to limit the impact. About 3% have recidivated and landed back in jail, which of course is the subset the local press focuses on, but at the end of the day, most did not, and incarcerating fewer people is the only sure way to limit the risk.

Texas' three largest counties may soon reach a tipping point when it comes to the coronavirus in their jails, especially Harris County, with employees coming down with the disease in such large numbers it calls into question their ability to house inmates at the volumes presently incarcerated there. More testing would be helpful, but it also risks exposing a problem bigger than the jails are prepared to handle. We haven't reached that point yet, but if and when they do, Sheriffs will need a Plan B besides playing the PR game and hoping for the best.

RELATED: District Attorneys in Dallas, Bexar, Nueces, and Fort Bend Counties, represented by my neighbor, Jessica Brand, filed an amicus brief in the lawsuit before the Texas Supreme Court related to the legality of the governor's executive order related to COVID-related jail releases. See here for more detail on their position.

Austin PD racism, local media's lapdog nature, all exposed by one report

Grits has said many times that the local press in Austin reside, in large part, in the breast pocket of their law enforcement sources and generally do more to cover up problems than expose them. That was certainly true of initial coverage of a just-published report commissioned by the City Council regarding allegations of racism among Austin PD command staff. Headlines included:

• "Probe finds no proof of racist remarks by Austin police leader, but calls for change"
• "Investigator largely unable to corroborate claims of bigotry against high ranking Austin police"
• "Independent investigation into APD racism, homophobic allegations finds no policy violations"

These summations wholly misstate what the investigation actually found. They did find evidence of racist remarks, did corroborate claims of bigotry, and definitely identified policy violations, although departmental policies forbid punishing them if they happened more than 180 days ago. Frankly, media coverage of this report amounted to an embarrassing coverup. Or maybe all the reporters are just incredibly lazy. Or, perhaps most likely, both things may be true.

The report emphasized repeatedly that the investigation was launched after a great deal of publicity around the incidents so that everyone had plenty of time to scrub all their phones and communications. "I can't recall" appears to have been the most common response to all specific questions. Attorney Lisa Tatum herself described her task as akin to "being named an honorary detective who was assigned to investigate an outdoor crime scene after it had already rained — twice." So take all the "no racism found" memes in the local media with a massive grain of salt.

The nearly 50-page document is frankly repetitive, poorly written, leaves out many relevant details (often from its frustrating overuse of the passive voice), and was very hard to follow. Honestly, I've read more artfully written probable-cause affidavits!  So Grits went through to pull quotes regarding some of the highlights. Otherwise, I fear even stakeholders won't read all the details because the document is so hard to get through. Separating the wheat from the chaff, though, there's definitely some important detail in there which was mostly ignored by the press coverage so far.

Racism well-known, tolerated at highest levels of the department
Let's start with the racism allegations.  The Tatum Law Firm was hired to investigate several specific allegations, including an assistant chief allegedly using the N-word in text messages. While they could not confirm that specific usage, they discovered plenty of evidence of racism, and in particular many people corroborated such attitudes by Assistant Chief Justin Newsom.

They received reports from "several" people alleging "that AC Newsom has used inappropriate language or made blatantly biased statements." Among APD employees interviewed, "By several accounts, AC Newsom's use of racist language was well known throughout the Department as was the use of such language by other officers who were known to be close friends with AC Newsom and used such language openly and often."

Further, "there are those who believe the alleged behavior to be true based on past accounts and the close circle of colleagues known to associate with AC Newsom who have reputations for making such comments."

"Reports came to us, from different ranks, races and genders, advising of the fact that the racist and sexist name calling and use of derogatory terms associated with race and sex persists. Anecdotal history indicated that even members of the executive staff over the years had been known to use racist and sexist language, particularly when around the lower ranks or other subordinates."

"We listened to many anecdotes illustrating inappropriate comments over the years through which APD personnel expressed concern about racist behavior, but also sexist behavior, and dissimilar treatment in the handling of officer discipline and those who may be served by APD chaplain services with the denial of marital services to same sex couples. There are some real cultural issues that are in need of attention."

The investigators were left with an impression that APD brass simply didn't want to know the truth about racism in the department. "In addressing issues of race," they opined toward the end, "it is difficult to see what cannot be seen and is often more difficult to get recognition from those who do not want to see." Isn't it, though?

Manley, the un-investigator
Another recurring theme in the report was Chief Brian Manley seeking to avoid investigating serious allegations of misconduct. In September 2019, weeks before any of this became public:

AC Newsom told Chief Manley that he was concerned about his text history becoming public at the arbitration, so much so, AC Newsom stated to Chief Manley if the texts became public he would leave the Department. There was not discussion regarding the nature of the text messages. Chief Manley did not ask about the text messages. Chief Manley advised AC Newsom to speak to the Law Department if he had concerns about his testimony.

The investigators believed Manley should have intervened at that point, but he did not. "AC Newsom’s self-report, the email complaint and Complaint 1 suggest that AC Newsom was in violation of policy with sufficient information to review or investigate AC Newsom’s behavior. Chief Manley did not send these allegations for review or investigation." Later, they added:

Tatum Law was able to establish that Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart. The October 7, 2019, email received by Chief Manley alleging similar facts to those later alleged in the October 30, 2019 complaint about AC Newsom’s use of the derogatory term “nigger” in text messages to refer to African Americans provided sufficient information to suggest that AC Newsom was in violation of policy for review or investigation. Chief Manley did not send these allegations for review or investigation.

In the end, if the city council had not commissioned Tatum's review, the issue would never have been investigated. "At the conclusion of the collaboration with Internal Affairs," according to the report, "we learned there were no reports leading to any investigation or review of AC Newsom’s alleged use of racist language by Chief Manley, Internal Affairs or OPO." This failure upset quite a few people among APD brass:

Frustration was expressed by some 20% of the executive floor with the fact that apparently no questions were asked of AC Newsom about the text messages. Who received the text messages and why had the text messages caused such concern? What did the text messages say? When were the text messages sent? If questions were asked, the answers apparently were not shared or acted upon back when AC Newsom was talking about them.

It's worth mentioning, though, that this attitude of ignoring serious alleged misconduct reportedly extends beyond this one episode. Former Commander Jason Dusterhoft, who admittedly comes to this exercise with sour grapes after he was fired for an off-duty episode of "rough sex," provided an example about a sergeant, who was later promoted to Commander, who allegedly made false statements to Internal Affairs about falsified time sheets. Dusterhoft believed this episode justified felony evidence tampering charges, but "Commander Dusterhoft reports that Chief Manley agreed with his determination but later asked him to sign off on the case with no finding of wrongdoing."

The department apparently has had a significant problem with officers "double dipping" by working overtime jobs when they're supposed to be putting in hours for APD. The memo says policy changes were made in the latest meet-and-confer agreement to address this, but no details were supplied and it's not at all clear from this document the issue has been rectified.

Dusterhoft also alleged Manley ordered him to stop looking into problems at Austin's DNA lab, which months later had to be completely shut down because of incompetence and bad forensic practices.

Dusterhoft alleged he informed Chief Manley on a number of occasions that the Forensic Division/DNA Lab was in need of reform. Discussions with personnel and our investigation revealed that there were significant issues in the recent past involving the Forensic Division/DNA Lab, much of which were covered by the media. According to Chief Manley, this matter was addressed. He described some of the concerns as a clash of personalities between the Director of the Forensic Division and Commander Dusterhoft, who was supervising the division. Chief Manley advised that leadership did report that there were issues about people in the division but that there were no issues with evidence. Media coverage and updates, as recent as February of 2019, provided to City Council from the City Manager’s Office suggest there was subsequently much more involved. The information gathered was sufficient to address the purposes of this report.  

Commander Dusterhoft’s written responses report that this incident occurred in the last few months of Director’s tenure with the Austin Police Department. By his account, he presented a number of concerns to Chief Manley several months prior to Director’s departure and was advised by Chief Manley “to leave it alone.” Dusterhoft’s concerns include mismanagement and the Director’s direct attempts to undermine his efforts to reform the Forensic Division.

As it turns out, the DNA lab had serious problems and telling the commander in charge of the division to back off of oversight was a severe disservice to the department and the public.

Missing reprimand letters, Occupy Austin docs

Another recurring theme was documents missing - particularly related to officer discipline - that by any reasonable standard should have been maintained, particularly "letters of reprimand" issued for misconduct. This turned out to be a significant hindrance to their investigation.

There were several occasions when Tatum Law learned about the existence of documents and those documents could not be located. As part of the investigation, a series of document requests were made working with the City of Austin and the Austin Police Department. We were told by complainants and witnesses that certain documents were seen, delivered and, in some instances signed. It was their understanding that those documents were placed in case files or personnel records where such records are to be maintained in compliance with policy and statute. Some of those documents could not be located and, in our opinion, should have been able to be retrieved for review. Other documents Tatum Law learned about are documents generated and maintained in the course of regular business operations. Some of those documents were also not able to be produced. On the occasions when such documents were not produced, no explanation was provided as to the absence of a record or document. [Emphasis added.] Tatum Law cannot say whether a document in question was lost, damaged, destroyed, destroyed pursuant to a record retention policy or otherwise.

Reprimand letters in particular seem to vanish into thin air with remarkable frequency. They appear to be kept on file for some people, but disappear whenever APD brass gets them.

We learned that some documents that should be maintained are not maintained. An example is the Letter of Reprimand of a Commander regarding Use of Force review, who should have been provided with a signed copy and the signed copy should have been in the personnel file. Since the reprimand was part of a larger policy and/or performance review, then there should be a copy in the review file or an IA file. Another example is AC Gay’s Letter of Reprimand. Neither the Law Department nor Internal Affairs were able to locate this document. Tatum Law learned several managers were issued Letters of Reprimand for the same incident and we were able to obtain a copy of the letter from someone else involved in the reprimand process.

In the case of Assistant Chief Gay, whose reprimand was issued over misbehavior by undercover operatives who infiltrated the activist group Occupy Austin, his case was the subject of a full-blown "tribunal." But somehow, the records fell off the back of a truck on their way to the file room and can no longer be found.

The report specifically recommended that the city implement full-blown audits of Internal Affairs documentation and strengthen policies on file maintenance and record retention. I hope the city council picks up on that and follows through, it's important.

Union boss circumvented disciplinary process by informing investigation target

Notoriously, Assistant Chief Newsom found out about the complaints against him prematurely and resigned before his alleged racist texts could be investigated. This created tremendous consternation within the department.

Interviews with other witnesses, particularly other active and separated sworn employees, consistently shared their concern over AC Newsom’s departure with full benefits and no review of the allegations raised against him. There seemed to be an understanding of policy; however, the feeling of betrayal and an abuse of the system were quite prevalent. 

For months, everyone watching this clusterf*#k has wondered, how did Newsom learn of the allegations before an investigation was implemented? Turns out it was union boss Ken Casaday who told Newsom what was coming in time for Newsom to resign, clear out his things, and get out of Dodge before any formal investigation started. The Austin Police Association president admitted this directly to investigators.

As a result, Newsom got a nice payday, and Ken Casaday got to call for Manley's head in the press for it as though he hadn't set the whole situation up. This would be a significant policy violation that could be punished as misconduct, except for the 180 day rule (see below). By the time Casaday (almost gleefully, from the report) fessed up, he could no longer be punished.

(CLARIFICATION (4/21): Casaday claims to have snuck through a loophole on this question, saying his actions wouldn't formally constitute a violation unless a formal investigation had launched. However, Art. 16, Sec. 8 of the police contract, says "Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the department's use pursuant to Sec. 143.089(g) of the Texas Local Government Code."  That's the provision Grits believes he violated. Regardless, by leaking this information to Newsom prematurely, Casaday prevented an investigation from occurring. So if it was not a policy violation, it remains a "betrayal and an abuse of the system.")

180-day rule prevents adequate oversight

Casaday did what he did understanding full well how this department avoids punishing certain officers. A provision in the meet-and-confer contract forbids APD from punishing officers beyond an oral reprimand for behavior which occurred more than 180 days prior, even if it takes longer than that to investigate. This lets many offending cops off the hook and is occasionally manipulated strategically by brass to avoid punishing favored officers.

Administrative Policies and procedures allow for a degree of discretion in investigations which, when used appropriately, enables leadership to address employment concerns and policy violations as part of a scale of disciplinary options based upon the facts at hand. When used inappropriately, a violation of policy may be overlooked, left unattended or disregarded until 180 days have passed barring the more strict consequences from consideration or recommendation when addressing behavior in a complaint. An argument can be made that inappropriate use of discretion and the time limitation can lead to a complete avoidance of a review or an investigation and the potential consequences for misconduct. Misuse of the same policies can also lead to a higher standard of scrutiny being used and adverse employment action for some officers and not others.

Among officers interviewed, "There was a high level of frustration expressed because complaints of discrimination are often known to fall on deaf ears, sit in files without action in excess of 180 days, then are discounted or disregarded." 

Advocates have complained about this problem for at least two decades, so it's nice to see the problem confirmed by an independent reviewer.

Fears of retaliation, failures to investigate

Finally, I'd be remiss not to mention the sentiment repeated throughout the document that officers who want the department to improve fear speaking up because of "almost certain" retaliation.

[T]here have been reports of complaints, race-based or otherwise, made against officers to include executive staff that have been seemingly placed on hold or otherwise delayed and even swept under the rug and disregarded. It has been shared that on more than one occasion multiple complaints were made about a certain individual’s behavior. Some accounts led only to informal verbal counseling repeatedly. Other accounts advise that the complaint goes under review and then seems to disappear without redress. Still others are discounted and never acted upon. Officer testimony, from all races, ages and ranks, suggests the outcome depends upon both the subject and the audience. Some officers complain that the outcome may have been different if the information actually made it to the Chief of Police. Still other officers are doubtful anything will change.

Similarly:

Whether it is about a grievance or misconduct there is an overwhelming sentiment among officers, at or previously involved with the Austin Police Department, and regardless of rank, that an officer, or even civilian staff member, who wishes to right a wrong, complain about improper conduct, or participate in an investigation such as this one, must be prepared in the present climate and culture to face almost certain retaliation, and not necessarily from Chief Manley, directly or solely. The wariness has been frequently attributed to networks of officers within the Department and is dependent upon the circumstances and the network of officers involved. These accounts of retaliation span almost thirty years of officer careers up to and as recently as February 2020.

There's more, but your correspondent still isn't 100% back on my feet, so Grits will leave it there for now. However, with the local press in virtual unison doing their "Move along, nothing to see here" Officer Barbrady homage, I felt like somebody needed to mention what the report actually found, instead of focusing only on what it didn't. So now you know.

Harris County DA: Judges cannot consider health issues as part of pretrial release decisions.

We're still waiting for the Supreme Court of Texas to rule whether Governor Greg Abbott's executive order on COVID-related jail releases is valid (see Grits' writeup here).

In the meantime, though, Harris County District Attorney Kim Ogg has filed an "emergency motion" with the Texas Court of Criminal Appeals arguing that judges do not have authority under the Code of Criminal Procedure to consider "public health matters," including the risks associated with people catching the coronavirus in jail, when they make bail determinations. Her motion opined that:

A concern over COVID-19, and an extra-judicial desire to not “fill the jail up”, entered into Singleton’s bail determination. This was improper.  

Article 17.15 lacks a “catch-all” to permit consideration of public health matters, nor does any existing case law. In addition, nothing in this Court’s First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-007, permits a court to circumvent art. 17.15. 

The case involves a 31-year old black man named Timothy Singleton who allegedly pointed a gun at someone who allegedly owed him money and threatened to kill him if the man didn't pay. According to the DA's court filing, "Singleton has prior felony convictions for Assault—Family Member, Retaliation, Robbery, Credit Card Abuse, and Delivery of a Controlled Substance." The DA's office wanted a $50,000 bond set, which would mean he'd need to come up with $5,000 for a bail bondsman to be released pretrial.

Singleton's case has been touted widely in the local media and clearly the DA's office hopes to use it to set a precedent stopping judges from considering coronavirus-related issues altogether.

It's worth mentioning that bail is intended only to ensure the defendant shows up in court, it is not supposed to be a punishment. To that end, it's notable that, in fact, Mr. Singleton DID show back up to court so the DA could argue to raise his bail, making it a somewhat dubious claim that the bail amount was too low to get him to come back. (See the second update below)

Regardless of the merits of bail arguments in this particular case, Ogg's is a more regressive stance, even, than the governor's executive order, which did in fact include a catch-all for "health or medical" issues.

By filing this motion, the DA's office is seeking an arrest warrant for the bailed defendant. She quoted this passage from the CCP on that score:

Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

I understand the DA's Office is used to getting its way on these matters, but the Code of Criminal Procedure gives judges the authority to call these shots, not her. The Court of Criminal Appeals, however, can overrule local magistrates (if Ogg's reading of the statute is correct - I am not an attorney). And considering the Government-Always-Wins faction of the court currently holds a solid five-member majority on that body, your correspondent fears they may use this opportunity to enact a sweeping precedent.

Attorney Emily Gerrick from the Texas Fair Defense Project pointed out via text that "it's so exceedingly clear that they are not at all worried about wealthy people who might be violent." That's exactly right. Kim Ogg obviously isn't worried about Singleton getting out if he has $5K to pay a bail bondsman. Only poor people should stay locked up pretrial, according to her logic (which incidentally, is similar to, if more regressive than, the governor's logic in his executive order).

This petition comes on the heels of the Texas Department of Criminal Justice announcing it will no longer accept new prison inmates from county jails. So if Ogg prevails and judges cannot consider health issues when determining pretrial release, Texas county jails may quickly find themselves in a full-blown crisis, unable to limit new incarceration due to the coronavirus on the front end and unable to ship people to prison once their cases have been adjudicated.

UPDATE: The Court of Criminal Appeals denied Ogg's motion, declaring she must first pursue it through the Court of Appeals before they would hear it. Thanks to Keri Blakinger for the heads up.

NUTHER UPDATE (4/16): I have been informed today that Mr. Singleton has allegedly engaged in an act of domestic violence (4/17: here's news coverage) while out on bail and is now on the lam. To be clear, I wasn't arguing whether this particular person should or shouldn't have been released. (I know nothing of the case beyond Kim Ogg's motion.) My main concern is what I consider an irresponsible argument from the DA that judges cannot consider health issues when assigning bail.

Judge ruled Abbott exceeded his authority on executive order limiting personal bonds, but the fight's not over

UPDATE: The Supreme Court of Texas on Saturday issued a temporary stay on Judge Livingston's Temporary Restraining Order, meaning Abbott's order for now is back in effect. The court has requested briefings on the subject, with responses from the litigants due on Monday. See coverage from the Texas Tribune.

ORIGINAL POST: Texas Governor Greg Abbott and Attorney General Ken Paxton took one on the chin yesterday when Travis County District Judge Lora Livingston issued a Temporary Restraining Order barring enforcement of the governor's executive order barring jail releases of people with current charges or past convictions involving violent offenses. See initial coverage from the Austin Statesman, and briefs from the plaintiffs and Abbott/Paxton's attorneys.

At another hearing scheduled for April 24, Judge Livingston will decide whether to turn the TRO into a full-blown injunction, if the Supreme Court of Texas doesn't beat her to the punch (see below). Here's Judge Livingston's letter explaining her decision.

Grits considered the executive order a barely disguised attack on bail reform efforts in Harris County and a warning shot aimed at other jurisdictions that might follow their lead. There was no obvious link between the order and protecting people from the coronavirus, and in fact, it increased risk of infections in Texas county jails. So I was glad to see Livingston's decision, though I also understand this is only the first step down a longer path.

Though I'm not a lawyer, when I read the government's response to the petition from the ACLU of Texas, the Fair Defense Project, and the Lawyers Committee for Human Rights, I suspected they would lose on the merits. Frankly, they didn't address most of the plaintiffs' arguments directly, sidestepping them with sweeping overstatements and absurd attacks that, if taken to their logical conclusion, would make Governor Abbott essentially an un-accountable dictator whenever he decided to declare a disaster. 

In their brief, Abbott's lawyers accused judges of "misusing" their authority to grant personal bonds, but in the hearing yesterday, they could not identify a single example of such misuse, despite Livingston repeatedly pressing lead counsel Adam Biggs on the point. Not. A. Single. One.

Indeed, Biggs was unable to identify how the governor's executive order related to the coronavirus at all. The "disaster" to which he was responding, Livingston pointed out, had nothing to do with judges' authority to issue personal bonds, which predated the rise of the virus. In essence, the virus was an excuse for the action, not the reason.

They also blew past the central arguments by the plaintiffs without addressing them, arguing against positions never taken. Plaintiffs contended the Disaster Act only authorized the governor to override "regulatory" statutes governing state agencies, not the Code of Criminal Procedure or the Texas Constitution. But Biggs and Co. argued that, "According to Plaintiffs’ interpretation, the Governor would have to run to the Texas Legislature any time one of his COVID-19-related executive orders—like the recent restrictions on social distancing—touches upon just one of Texas’ numerous statutes." This ignored the "regulatory" distinction in the Disaster Act on which the plaintiffs' central argument hinged and made it easy for for Livingston to ignore their position and rule against them. It was simply non-responsive.

Maybe the oddest of the governor's lawyers' arguments was that the plaintiffs were encouraging "the deaths of tens of thousands of ... Texans" by contending that only the Legislature could suspend non-"regulatory" statutes.

Plaintiffs’ theory is that only the Legislature should have meaningful power to suspend laws that prevent the State’s response to this growing threat. Apart from the lack of a textual basis for Plaintiffs’ arguments, the following shows why this theory cannot be correct and would lead to disastrous results. To take legislative action, the Legislature would need to convene in person at some centralized place (the presumptive location is the State Capitol in Austin). 

It would presumably take days, if not weeks, to assemble individual legislators in the State Capitol or anywhere else. There are 150 Texas House members and 31 Texas Senate members.193 Two-thirds of the members from each chamber (100 for the House and 21 for the Senate) would need to appear to have a “quorum to do business.”194 Plaintiffs’ theory thus raises the specter of 121 Texas legislators gathering on one central location in the midst of a highly infections deadly disease that can quickly ravage large groups of people in a closely-confined area. The problems continue. 

Once the vote is done and the legislators go their separate ways, what happens when the COVID-19 threat quadruples in the following week (as we have seen is all too possible), which necessitates more severe action and thus the suspension of additional statutes? Well, the process would start all over again.

According to Plaintiffs, this Court is required to interpret § 418.016(a) in a way that could realistically result in the deaths of numerous Texas Legislators and, due to built-in delays in the process, the deaths of tens of thousands of other Texans.

Frankly, that doesn't seem "realistic" at all, considering Texas has seen fewer that 12,000 cases overall and as of yesterday, 226 deaths. By contrast, the plaintiffs made solid arguments both in their brief and at the hearing that pretrial defendants in jail were at significantly greater risk of contracting the virus, an argument Abbott's lawyers simply ignored or downplayed. Judge Livingston, however, raised the point multiple times and considered it a reasonable thing for judges to take into account, especially since Biggs and Co. could identify no examples of judges "misusing" the authority, as their brief had claimed.

Indeed, the argument that the Legislature convening would kill "tens of thousands" of people ignores the fact that the Texas Constitution includes a pandemic exception that allows the Legislature to convene outside of Austin if the capitol faces a "disease threat."

Sec. 8. CONVENING LEGISLATURE ON EXTRAORDINARY OCCASIONS. (a) The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place, in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened.

However far afield some of these debates seemed, they didn't play a major role in the judge's decision. From her commentary at the hearing (thanks to the Texas Observer's Michael Barajas for sharing a recording), Judge Livingston's central motivation appeared to be protecting the powers of the judiciary from infringement by the executive branch. This passage from her explanatory letter (linked above) made that clear:

many of the orders in Executive Order GA-13 strip away the discretion of the judiciary and potentially subject its judges to mandamus or criminal action with little or no rationale in coping with the current health crisis. Instead, the order appears to address an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses. The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to do so every day once the disaster declaration ends. The exercise of judicial discretion falls squarely within the purview of the judicial branch of our government. To be clear, the judges of this State may not abandon their responsibility in this regard, but neither may it be taken away from them by executive order. 

From this non-lawyer's perspective, the governor's attorneys made it awfully easy for Livingston to rule against them by ignoring central arguments from the plaintiffs and instead railing against straw men. They overstated their own case to a significant degree and downplayed plaintiffs' most important points to an even greater one. I was surprised their response wasn't stronger.

That said, it's possible the governor could prevail, anyway. As Grits was wrapping up this post, word came that Abbott's lawyers will file a mandamus action with the Supreme Court of Texas today, essentially performing an end run around the normal channels of judicial review.

Will the Supreme Court's loyalties lie more with the constitutional authority of the judicial branch or their partisan affiliations? Is Greg Abbott merely a governor whose powers are constrained by the constitution and state law, or a king who may do what he pleases so long as he declares a "disaster" first? Or will the Republican-led Supreme Court have the foresight to understand that their party won't always control Texas' statewide offices and enforce constitutional limits so that future governors won't also run amok?

Those are the big-picture questions before them, and though I think Judge Livingston was right on the facts and the law, Grits couldn't begin to guess what the final answers will be.

MORE: See Judge Elsa Alcala's analysis.

New Austin PD complaint policies undermine police oversight to minimize complaints from the public

Grits has been catching up on all that's gone on while I've been under the weather and was dismayed to learn that, in February, Austin PD Chief Bryan Manley radically revised his department's complaint process explicitly to make police misconduct more opaque and to undermine both the new police contract and the Office of Police Oversight (OPO).

Honestly, this is just bad faith. The Austin City Council should act as soon as practicable to override this decision-by-fiat. None of this has been covered yet in the local press.

Here's the freshly revised APD General Orders. Section 902, which governs administrative investigations of officer misconduct, begins on p. 14 of the pdf (p. 548 of the General Orders).

On March 13, Austin Police Monitor Farah Muscadin wrote a letter to Chief Manley formally objecting to the changes, which he had sent her on January 21, giving her 24 hours to respond. Her office couldn't meet that (unreasonable) timeline, but they issued a formal response on January 24. However, Chief Manley "completely disregarded OPO feedback and the objectionable revisions were made to the General Orders on February 6, 2020."

Last year, Muscadin's office had jointly negotiated new Standard Operating Procedures with the department on these topics, but Chief Manley never signed the resulting document (which she appended at the end of her letter). She attributed the resistance to the "obstructionist tendencies of APD's Internal Affairs (IA)" department. As a result, she said, APD "continued to allow investigators in IA to obstruct oversight staff."

In particular, the new orders created "new obstacles designed to trivialize substantive complaints and disguise them under newly created categories that APD has created against OPO's recommendation." These changes will "limit the OPO's ability to share information with the public and contradict previous communications made to the public, thereby reducing the level of transparency."

The orders created a new category of complaints which are no longer called "complaints" but "external information." For "external information" incidents from the public, punishment will be limited to a written reprimand. If an "information incident" is "satisfactorily handled" by a supervisor (whatever that means), it may be closed and the public will never learn of it.

Muscadin correctly opined that "this new category is detrimental to the established process and attempts to minimize complaints from the public."

Without getting too deep into the weeds, the new orders also changed how complaints submitted to the OPO are classified by the department. Previously, there were three complaint categories at the OPO: formal complaints, supervisor referrals, and citizen concerns. Now, "citizen concerns" will be recorded as "external information," and may be closed by IA upon initial categorization with no investigation required.

Supervisor referrals, bizarrely, will now be categorized as "citizen concerns," while a new category called 'Minor Policy Violations' will now be labeled "supervisor referrals." Got that?

Finally, incoming complaints historically are categorized A, B, C, or D, depending on an initial assessment of their validity/severity by either IA or the officer's supervisor. Another big change is that only those classified A or B will now be considered "formal" complaints.

Notably, IA only classifies "administrative" complaints. Complaints of "serious or criminal nature" are categorized and initially investigated by a supervisor with the rank of sergeant or above.

Muscadin declared that these new categorizations "will mislead the public and continue to feed a false narrative that complaints filed with the OPO against APD are not rigorously assessed," as well as "leave complainants without any meaningful resolution or sense of procedural justice."

She could have gone further and pointed out that, for complaints NOT submitted through the OPO, it makes it more likely no one outside the department will ever learn of them, significantly undermining her office's oversight authority.

These changes should be seen in light of revisions to the contract between the City of Austin and the Austin Police Association implemented after a bitter, year-long fight in 2018. The most important changes increased transparency and made certain complainants will receive more information about how their complaints were handled and what happened to them. These alterations undermine those goals directly by redefining terms so that things which were previously transparent become opaque.

Like I said, bad faith.

The Austin City Council wasn't cc'd on Muscadin's letter - for that matter, neither was the city manager - so it's unclear whether they even know this has happened. If not, that's an even more egregious breach of trust.

The Austin City Council should move with haste to override these changes and find some way to punish the Chief for thumbing his nose at the city's oversight processes. Manley clearly thought he could bully Muscadin and sneak all this through without informing the council or the public. I'm proud of her for standing up to defend her office's authority. Now, we'll learn who on the City Council does or doesn't have her back ... just in time for the November elections.

Note: Austin PD uses the phrase "citizen" complaints, concerns, etc., but that's inaccurate. The OPO rightly takes complaints from citizens and non-citizens alike. Though I was tracking their language, I've removed the term from the headline.

UPDATE: Reacting to (but not acknowledging) this blog post, the Austin Statesman covered this story today.

Texas the 'epicenter' of forensic hypnosis, perhaps the junkiest of junk science

From "Zipping Along," Loony Tunes, 1953

Most Americans got their first sense of "hypnosis" from watching cartoons, where the mind-control trope has been a staple for decades. But it's no laughing matter when the practice enters the courtroom and people are sent to prison for decades, or even executed, based on such pseudoscientific foolishness.

Texas is the "epicenter" of forensic-hypnosis use in the United States, according to  a pair of investigative stories published this week at the Dallas Morning News by Lauren McGaughy and Dave Boucher. The feature was two years in the making. Check them out here:

• The Memory Room, Part One
• The Memory Room, Part Two

The title of the series comes from jargon used by forensic hypnotists at Texas DPS who tell witnesses to enter a "Memory Room" where they supposedly can review their memories as though watching a TV, hitting rewind, pausing, and generally treating one's memory as though watching a recorded video.

According to videos and documents The News obtained, police hypnotists use methods crafted at least as early as the 1970s and ’80s. Texas Rangers, among the most prolific hypnotists in the state, are still telling subjects to close their eyes, enter an imaginary “Memory Room” and watch their recollections on a television, as though they were a movie. It is an effort to find supposedly lost or buried clues, but experts refute this technique as dangerous and misleading.

Here's a little more detail:

This approach is still popular with the Rangers. In videos of some sessions The News obtained, hypnotists used the same method before instructing witnesses to imagine standing atop a staircase. As they walk down the steps in their minds, they are supposed to go deeper and deeper into a trance. 

At the bottom, they are told they see a door. A sign on or above that door reads “Memory Room.”  Upon entering, they are told to sit in front of a television. The hypnotist directs them to watch their memories on the screen.

In real life, scientists now understand that memories are recreated each time they are recalled and change substantially over time. The idea that a secret videotape is stored somewhere in the "subconscious" which may be reviewed during hypnosis has zero scientific credibility and, outside of law enforcement, has been relegated in the modern era to the realm of two-bit stage magicians. Even so, a Texas Ranger told the Morning News, "It's a very precise science."

These disproven misconceptions about memory are central both to the Texas court cases that approved this junk-science technique, as well as the state-approved training materials still used to this day training forensic hypnotists in Texas.

The Texas Court of Criminal Appeals has for a couple of years now had a death-penalty case before it which will revisit whether forensic hypnosis remains a valid technique in this state. With the Government Always Wins faction presently in firm control of that body, Grits fears the worst from this ruling. The fact that the case has taken so long to decide tells you there's a likely intense, behind-the-scenes disagreement among judges over how to proceed.

There's little scientific justification remaining behind the central tenets of Zani v. Texas, the 1988 decision in which the CCA first approved the technique's use, so it's possible that even the GAW faction of the CCA can't find enough meat left on that bone to continue the practice. The most detailed academic analysis I've seen of the pros and cons of admitting such testimony in court concluded, "Admitting hypnotically enhanced testimony into evidence creates grave dangers that miscarriages of justice will occur. The problems that arise from this practice are so great that hypnotically enhanced testimony should never be admissible."

Part one of the Morning News package includes an excellent graphic presenting data on every case they could document at DPS using forensic hypnosis going back to 1980 (a total of 1,789 cases). While not used as frequently as other forensic methods, it's often used in high-profile cases where little other evidence exists. Eleven people have been executed based at least in part on hypnotically-induced testimony.

The central example case, fleshed out in detail in Part 2, involved a black security guard convicted of assaulting a white woman in the 1980s. No physical or other evidence linked him to the case and the victim did not identify him in a photo array after the incident. But following a hypnosis session that experts say included leading questions from the hypnotist, she declared the security guard did it. He served 31 years of a 60 year sentence and to this day insists he was wrongfully convicted.

Here's hoping the Court of Criminal Appeals disallows this junk science going forward. The Texas Forensic Science Commission cannot study the question under its enabling statute because it relates to testimonial, not "physical" evidence. And though State Sen. Juan "Chuy" Hinojosa filed legislation last year to ban the technique from Texas courtrooms, Senate Criminal Justice Committee Chairman John Whitmire wouldn't give the bill a hearing. So if the CCA doesn't disallow such testimony, there appear to be no near-term options available for challenging the practice.

Read both the Morning News stories, they're easily the best thing I've seen from the MSM on these topics.

For more background, see:

• A brief primer on forensic hypnosis
• You're getting sleepy, so you won't notice Texas is still using junk science like 'forensic hypnosis' in death penalty cases
• Bill filed to eliminate forensic hypnosis from Texas courts
• Reasonably Suspicious podcast, Nov. 2017 (beginning at 28:10 mark)
• Reasonably Suspicious podcast, May 2018 (beginning at 21:19 mark)
• Here's Lauren McGaughy's earlier coverage. 
• Elizabeth Loftus, "The Reality of Repressed Memories"
• Gary Shaw, Marquette Law Review, 1991, "The Admissibility of Hypnotically Enhanced Testimony in Criminal Trials"

Litigation challenges Abbott's executive order on COVID-19 jail releases

The Texas Fair Defense Project, ACLU of Texas, and the Lawyers Committee for Civil Rights Under Law sued Governor Greg Abbott over his executive order (GA-13) related to pretrial jail releases in response  to the coronavirus, as well as Attorney General Ken Paxton, who has vowed to aggressively enforce it. The Harris County Attorney's office has also signed onto the litigation, and 16 Harris County Criminal Court at Law judges number among the plaintiffs. It was filed in a Travis County district court.

In an email announcing the lawsuit, TFDP's Amanda Woog wrote that:

Public health experts have been warning for weeks of the dangers of COVID-19 in jails: tight quarters, a particularly vulnerable population, and a revolving door of staff and detained people, make a jail a "hotspot" for a COVID-19 outbreak which would devastate the people within and outside the jail walls. The order sought to disrupt the incredible movement we've been seeing across Texas of local stakeholders working together to reduce their jail populations. 

The executive order threatens public and community health, undermining efforts to reduce jail populations and avoid outbreak in jails and surrounding communities. Further, under the order, only the poor would stay in jail; people who can afford to pay cash bail are released, to the privilege of social distancing and other precautions we on the outside can take to avoid infection. 

It disrupts the work of local communities in determining how to respond to this unprecedented crisis, and unconstitutionally usurps the authority of the legislature and the judiciary.

The petition filed this morning can be found here, and the ACLU-TX press release here.

The lawsuit alleges Gov. Abbott's order spawned "turmoil and confusion in the courts by purporting to strip judges and magistrates of their authority to decide individual cases." As a result, "The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying an Executive Order."

The petition argues that "The Disaster Act does not empower the Governor to modify or suspend the targeted sections of the Code of Criminal Procedure. This renders GA-13 unlawful in its entirety, and the Court should invalidate its provisions as ultra vires [ed. note: acting beyond one's legal authority] on this basis alone.

Also, "GA-13 violates Article I, Section 28 of the state Constitution, which prohibits non-legislative suspension of the laws of the State, and Article II, Section 1, which mandates separation of powers between co-equal branches of government. GA-13 is therefore unconstitutional on its face."

Both stances to me appear inarguable. The governor has the power to suspend administrative regulations, but not the friggin' Code of Criminal Procedure! Grits wrote the other day that Abbott had exceeded his authority, and this is precisely why.

Conservatives should be just as unhappy at this attempted gubernatorial coup vs. local judicial power as are the judges, criminal defense lawyers and civil-rights groups who are plaintiffs in the suit. After all, if in a few years Democrats find themselves in control of statewide offices, will conservatives really want some liberal governor to have the authority to suspend criminal-law statutes and override local judges every time a disaster is declared?

Observed the plaintiffs, "The Disaster Act has never been interpreted to empower the Governor to interfere with the power of the Judiciary. Until now, no Texas Governor has invoked the Disaster Act to purport to suspend provisions of the Code of Criminal Procedure and effect sweeping changes to criminal law." Indeed, "The Texas Constitution provides that 'No power of suspending the laws of this state shall be exercised, except by the Legislature.' Tex. Const. Art. I, § 28."

Grits is very glad to see this and hopes the courts act quickly to thwart the governor's attempted power grab. I don't think he and Paxton have a leg to stand on.

See initial coverage of the lawsuit from the Austin Statesman and the Texas Tribune.

UPDATE (4/10): Just before a hearing began on Friday considering the request for a temporary restraining order, attorneys for the Governor and Attorney General filed their response brief. For those interested, here's a copy. Here's the first media coverage on the topic from the Fort Worth Star-Telegram, and another article from the Austin Statesman. I'm listening to an audio file of the hearing now. Judge Lora Livingston sounds unconvinced by the Governor's lawyers' arguments.

'The Peter Parker Problem': With great (judicial) power comes great responsibility

What does that Spiderman story have to do with judges setting bail? From a psychological perspective, as it turns out, everything!

Since everyone is looking for diversions while American society shuts down over the coronavirus, here's an interesting article I read recently that merits Grits readers' attention. Check out "The Peter Parker Problem." The premise: After Peter failed to help police apprehend a criminal who ran right past him and later killed his uncle,

Peter is sure he caused his uncle’s death. Even though this seems natural, stop to consider whether it is. First, Peter emphasizes his agency in not stopping the thief. But what about the agency of the thief? The thief decided to rob Uncle Ben, the thief decided to kill Ben when the robbery went wrong, and the theif planned to make his money through theft. Second, Peter overweights the likelihood of the thief killing his uncle because it happened. But how was Peter to know, as the thief was running down the hall, that the thief would kill anyone, much less his uncle? There was no particular evidence of violence at the time, and thieves as a class are not automatically violent. Third, Peter’s sense of responsibility is amplified by proximity (“I was so close”)—he would feel differently if he had been far away in place and time (seeing the thief run away from a distance, for example, even if he could have caught the thief if he sprinted). Peter thinks about the tragedy in terms of simple, one-to-one causes (“If only I had stopped him”) rather than many-to-many or other problems (e.g., “If only we had better gun control”). He thinks about the cause in terms of choices (dispositionism—e.g., “If I only I had done something”) rather than situational factors that would be equally effective (“If only the elevator had been out of order, or if only Uncle Ben had gotten food poisoning last night and not gone out of the house today, or if only he had left five minutes later or five minutes earlier, or if only the thief had killed someone else or Uncle Ben had been killed by a different perp.”).

Santa Clara University law professor David Ball argues (citations omitted) that

Criminal law is rife with examples of this kind of “just in case” thinking. California prison officials denied medical parole to a quadriplegic man on the grounds that he posed a threat to public safety, just in case he were to “possibly use his vocal cords, which are not paralyzed, to order crimes, maybe attacks on state employees.” Police officers stopped and frisked hundreds of thousands of mostly black and brown people in New York just in case some of them had weapons, even though the overwhelming majority didn’t. The United States Supreme Court held that it was reasonable to strip search someone wrongly arrested on a bench warrant because he could have been smuggling drugs—just in case, that is, he anticipated both the clerical error and the timing of the enforcement of the bench warrant and secreted drugs in his rectum. A well-known law professor argued that we should allow torture just in case we come across a situation where we know that there is a bomb, we know that it is going to go off soon, we know that the person we’ve detained knows all about it and won’t tell us unless we torture him—but, despite knowing almost everything about the scheme, we just don’t know where the bomb is. (Sometimes the claims of safety risks, particularly in a carceral context, are even less developed.) And if these harms never arrive? We got lucky—this time.

This article confronts a question which has thwarted many a reformer, particularly related to pretrial detention and parole decisions: what if risk assessments by actors in the justice system are really "psychological, not actuarial? What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?"

The current system, argues Ball, doesn't so much assess risk as "invoke" it as an excuse to ignore other risks. For example, the risk that "Detainees get longer sentences, they plead guilty more often, they are at risk for violence in jails if they suffer from mental illnesses and, even if the case is dismissed, they suffer economic losses from foregone work during detention. Though these losses are substantial, they are less salient. It is harder to keep them front of mind."

The article explores experimental research by behavioral psychologists on regret and counterfactuals to provide a compelling case for what's really driving high rates of pretrial detention.

Good stuff. Give it a read.

Coronavirus and Texas jails

Despite his protestations to the contrary, to this observer, Governor Abbott's emergency executive order regarding jail releases seems fairly transparently aimed at thwarting bail-reform efforts in Harris County. Abbott says his order focuses only on the severity of the crime alleged. But since it does nothing to prevent people accused of violent crimes from paying bail and walking free, as a practical matter his order reinforces the tenets of the cash-bail system. Those who can pay may liberate themselves from the threat of catching COVID-19 in the county jail; poor folks will remain at risk.

If litigated, most smart folks I've heard from think the governor's order exceeded his authority, in addition to making little practical sense. Regardless, federal court orders trump it. The bail litigation over felony defendants being spearheaded by Civil Rights Corps will be the deciding factor. Judge Lee Rosenthal has already told Harris County many felony defendants must be released and is considering the fate of thousands more. Grits' prediction: In the near term, she will call the shots and the governor must be satisfied with attempting to blame the George-W-Bush-appointed judge's decisions on Democrats.

Otherwise, no other counties' jail-pop reduction efforts that I've read about addressed violent crimes, and most focused solely on misdemeanors. So other than thumbing his nose at a federal judge, to me the order served little purpose besides grabbing some tuff-on-crime media coverage during a period when the press has decided the coronavirus is the only story worth covering.

If history is any guide, jails are ticking time bombs for spread of the virus. Advice from the Jail Standards Commission seems well meaning but won't prevent the disease from spreading once it gets inside any individual unit. Jailers are at as great a risk as the jailed. It's not practical to enact social separation, so once the virus gets in, jails could quickly become petri dishes filled with disease.

In the near term, several counties have been successful at using personal bonds to slightly reduce jail populations. And a dramatic crime reduction thanks to social distancing should help lower jail intake. On the other hand, courtroom activity has all but ground to a halt, with trials postponed possibly for months. So there's a risk that those inside who cannot afford to buy their way out will be trapped there if (and when) the virus breaches the bastille walls.

Perhaps the most useful advice from the Jail Standards Commission was for law-enforcement agencies to arrest fewer people in the first place. There are seven categories of Class B and A misdemeanors for which police officers already have the authority to issue citations instead of arresting people. But most agencies, from DPS to the smallest 2-man police department - have never availed themselves of that authority. One excellent outcome from all this would be for all agencies to adopt such policies. Abbott's order, however, remained mum on the subject.

Indeed, most Texas law-enforcement agencies continue to give officers discretion to arrest for Class C misdemeanors. For the most part, these folks are incarcerated in city jails which are unregulated by the Jail Standards Commission. While no media coverage I've seen has focused on city-run lockups, Grits considers them just as or more likely than county jails to become infested with the virus. Nobody pays much attention to these backwater entities - even advocates - and as they are completely lacking in transparency, there's no real way to monitor what goes on there until the day tragedy strikes.

Travis County suspended all active warrants for low-level offenses, which seems like another effective step other jurisdictions should copy. That goes double for all Class C warrants. Indeed, arguably municipal courts and justices of the peace should simply suspend all activities related to Class C misdemeanors for the foreseeable future. In the current environment, the juice simply isn't worth the squeeze.

For additional recommendations, Michele Deitch of UT's LBJ School has created a list of best practices every jail should be following.

In some ways, these debates could end up changing the entire paradigm surrounding decarceration debates. Before this episode, while advocates may have fantasized about jailers releasing entire classes of prisoners, in practice, that only happened one case at a time. Now, more systemic approaches are suddenly on the table. If and when prisoners and jailers begin dying, public officials, including the governor, will find themselves under pressure to do more than issue politicized, unconstitutional directives.